Queer Legacies of Colonialism
In September 2018, the High Court of India ruled that Section 377 of the Penal Code, which criminalized consensual same-sex relations, was unconstitutional. The victory was celebrated by both local and international activists, as the ruling was a high-profile case in a pattern of former colonies rejecting anti-LGBTIQ legislation that was impressed upon them.
Section 377 was imposed upon India during Britain's colonial control of the country. The criminalization of same-sex relations still exists in 67 countries today. Of these 67 countries, 65 are former colonies, and 46 are former British colonies. These laws, along with other remnants of colonial injustices, are part of a larger investigation into the lasting legacy of colonialism.
Criminalization of same-sex relations began in England with King Henry VIII’s Buggery Act of 1533. Buggery was the euphemism used to describe male same-sex relations. In 1563, Queen Elizabeth the First increased the reach of the law when she broadened the criminalization to include any sexual acts “contrary to nature.” Both attempts to increase the reach of sexual criminalization were an effort to further consolidate the power of the State, by removing power from religious authorities, as religious courts typically heard cases concerning such “offences”.
However, the terminology took a much more methodically sinister purpose during the 1600s. Edward Coke, an English judge, scholar and bigot, legally established the concept of same-sex relations as “crimes against the order of nature.” The reason behind this language was the desire to establish LGBTIQ identities as the “sin that shall not be named,” effectively criminalizing these identities while simultaneously silencing them by refusing to name them.
One can only speculate about the exact motivations of this increasing criminalization, but it was likely driven by a further effort to control social norms and expectations in order to maintain a grip on power. At this point in history, and the many years that followed it, power was almost exclusively held in the hands of patriarchal forces. These forces relied on hetero-normative discourses that positioned men as naturally stronger and more apt to rule than women. Or, if women did rule, it was due to their birthright, tying power back to reproduction. As such, it was especially relevant for these patriarchies to silence male LGBTIQ community members, which explains the hyper-focus on criminalizing male same-sex relations.
The effort to establish silence over LGBTIQ issues went so far that in 1826 forensic evidence was deemed not needed in order to rule that someone was “guilty.” Then, in the late 1800s, a public morality campaign that sought to raise the age of consent in the country gave an opportunity for further explicit criminalization. An amendment in the Criminal Law Amendment Act (1885) explicitly criminalized both the act and knowledge of same-sex activity between men.
Since colonial Penal Codes matched the “morals” of the colonizer, the language that is seen in the Penal Codes of former colonies matches the rhetoric of former colonizers. Still today, penal codes which criminalize same-sex relations predominantly use language such as “crimes against the order of nature”, “carnal knowledge”, “buggery”, or other terminology coined by colonizers which refused to name the LGBTIQ community.
This was evidently true of Section 377 of the Indian penal code.
The same section was included in a majority of other British colonies and protectorates. British colonizer Thomas Babington Macaulay created the Indian Penal Code, which was replicated in most colonies and protectorates. Section 377 of the code stated that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal” would be punished with imprisonment. Similar sections are still active and unchanged in Singapore, Malaysia, Pakistan, Bangladesh, Myanmar, Jamaica, among other places.
The criminalization of same-sex relations in former colonies existed for a variety of reasons. It is most notably understood as a continued effort to solidify power, and control people through policing and separation of social identities.
Colonial-era law was often justified by drawing false assumptions about the colonial “other” and the supposed need to tame or “civilize” them. For example, the concept of the “Sotadic Zone” (comprising the Americas, Asia, the Middle East, and Northern Africa), popularized by Richard Burton in his translation of Arabian Nights, was stereotyped as a decadent land where same-sex relations and other sexual “vices” were rampant, resulting in a degradation of society. This stereotype originated from the sexual freedoms seen in the Roman and Ottoman Empires, and then their subsequent decline.
This prompted the establishment of colonial-era same-sex criminalization in the laws imposed (in addition to those at home) for two reasons. The first is the justification of English presence in the region (a justification borrowed by all other colonial powers). Colonial powers stereotyped people from the global south as “savages,” unable to govern themselves morally and vulnerable to “corruption” from, for example, the so-called Sotadic Zone. Criminalization was a way to enforce English “morals” on the nations they colonized, as well as a way to justify their occupation of territory as a moral issue. In addition, this gave colonizers more reasons to police indigenous communities, policing being a main tenant of the colonial scheme.
Another reason is the restriction of the colonizers’ own vices. The gendered dimensions of colonialism enabled the colonizer to rape and pillage in their pursuit of what they fetishized as exotic. This was especially relevant for homosexual Englishmen, who used the opportunity to seek sexual encounters that they would be vilified for in England. Evidence of these instances could be seen in the prevalence of venereal diseases in colonies among members of the armed forces.
While criminalization at least partly attempted to limit the perceived “perversions” of colonizers, gender-based violence has always been used to assert colonial and imperial authority. In an unofficial capacity, the use of sex as a tool for dominance was widely used by colonial actors and is still a practice conducted by military forces across the globe to express their dominance.
Although criminalization originated from colonial powers, the resulting LGBTIQ-phobia in many former colonies has evolved into something much more complex. An understanding of State-sponsored LGBTIQ-phobia past just its colonial roots is necessary in order to better understand the state of global LGBTIQ equality.
Colonial powers often implemented authoritarian power structures that ruled on their behalf in an attempt to delegitimize locally recognized authorities and cultural practices. In order to wrestle legitimacy from the hands of local leaders, colonial-placed leaders galvanized people under nationalist ideals. All too often, one of the victims of these nationalist platforms was the LGBTIQ community, in addition to other minority groups, particularly ethnic minorities. This was due to the growing conception of LGBTIQ rights as a “Western imposition.” This LGBTIQ-phobia as a result of nationalism was completely absent before colonial State borders were drawn.
The role of national leaders evolved since colonial occupation, but nationalist values are often still the main perpetrator of LGBTIQ-phobia. Due to years of unjust occupation, self-determination is one of the most important rights for former colonial States. Ironically, this self-determination does not apply to LGBTIQ people. As such, leaders in numerous former colonies are pushing back against the global movement for the human rights of LGBTIQ persons, partly due to the prominence of Western voices.
These leaders often capitalize on the valid fears of their people, that former colonizers will once again dictate the affairs of their community. This makes it easy for leaders, like Uganda’s President Yoweri Museveni, to claim that homosexuality is a “western import.” These fears about the LGBTIQ community are further exacerbated by religious leaders and misinformation peddled about HIV/AIDS, and the further scapegoating of LGBTIQ people for health issues and natural disasters.
Global LGBTIQ activists have responded to this “imported homosexuality” argument with a counterargument of “imported homophobia.” Former colonizers are responding by acknowledging their own responsibility in facilitating LGBTIQ-phobia across former colonies. This approach is better than denying culpability, but it still makes a very simplistic statement, that LGBTIQ-phobia is solely the cause of colonial powers.
While it may seem justifiable to place all responsibility in the hands of former colonizers, that is an oversimplification. For starters, this argument takes all agency out of the hands of the people who live in former colonies. All this does is continue to dehumanize people and take away their voice.
Additionally, it replicates colonial power dynamics. The idea that “it is all the colonizer’s fault” implies that it is “all the colonizer’s responsibility to fix the problem.” Former colonizers should be focusing on reparations for the suffering they caused, not the continued domination of conversations surrounding human rights. It is important for colonizers to acknowledge and make amends for the suffering they caused, but it is also equally important to allow those who have been silenced for so long to advocate for LGBTIQ rights in a way that makes sense for them.
Despite the complex place that the human rights of LGBTIQ people find themselves within the global human rights framework, decriminalization efforts have been increasingly successful thanks to the tireless efforts not of former colonizers, but of local civil society organizations and activists.
Same-sex relations have been decriminalized in 10 countries since 2016. In the majority of cases - such as in India, Trinidad and Tobago, and Botswana - the judicial system iterated inconsistencies between the restriction of civil liberties and the nation’s values, ruling criminalization laws unconstitutional. In some cases, parliaments, such as in Angola and Bhutan, changed the law.
In all of these cases, decriminalization was won by the impact of civil society organizations that were most familiar with the cultures of their home. While condemnation by the international community can be an effective tool for change, it can also often backfire and result in more justification for the “LGBTIQ identities are imported” argument.
Unfortunately with the rise of LGBTIQ activism and its visibility, a backlash has also come. A decade's long trend towards decriminalization has stalled.
In Kenya, the High Court ruled that decriminalizing same-sex relations would contradict their constitutional values. The court argued that decriminalization would be an affront to the family, and would lead to same-sex marriage. In Ghana, where same-sex relations remain criminalized, the parliament is considering a new bill that would enhance criminalization by criminalizing every aspect of LGBTIQ identities, as well as being an ally to an LGBTIQ person.
In Singapore, the High Court dismissed several cases challenging Section 377A of the Penal Code. The court argued that the criminalization is still consistent with public moral values. In Indonesia and Egypt, which don't currently explicitly criminalize same-sex relations, bills that would introduce criminalization are pending.
What these cases all have in common is the adherence to a nation’s values as legal reasoning. As such, the best way to circumvent the imported homosexuality myth is to invest in civil society organizations that are fighting for change and acceptance of LGBTIQ people on the ground. Local activists know the local context and are best equipped to push for change in a way that works in their respective contexts, be that through court systems, lobbying of parliament, shifting public opinion, or all of the above.
It is a positive change that former colonizers are taking responsibility for their actions. However, the answer is not for them to take total responsibility for the progress of the human rights of LGBTIQ people. Repeating the mistakes of the past would continue to take agency away from those who for so long were refused the right to govern themselves. It is now the responsibility of those who formerly perpetuated LGBTIQ-phobia across the world to support local civil society organizations on the ground that are working tirelessly to promote a local conception of what it means to be LGBTIQ.
Published on August 16, 2021 | OutRight Action International an LGBT human rights organization